Over recent years, there have been growing demands[2] for banning lethal autonomous weapon systems (“LAWS”) by means of an international treaty. These demands are based on the apprehension that LAWS would lead to an arms race between nations, resulting in violent wars that are fought on a larger scale. There are also fears that LAWS would be acquired or developed by rogue nations and terrorist groups. The international community, therefore, considers it imperative to introduce a treaty that mandates States to eschew LAWS.

This post will argue that instead of banning LAWS, an international framework should be developed to encourage safe and responsible use of such weapons.

LAWS are defined as weapons that can select and engage targets without human intervention.[3] Upon activation, all decisions are made by the weapon autonomously including detecting locations, selecting targets and executing attacks. Humans can exercise supervisory control, but LAWS are largely expected to function with humans out of the loop.

Arms treaties can be classified into two types – those that have seen almost universal ratification/accession and those that have failed to do so. The Chemical Weapons Convention and the Biological Weapons Convention fall squarely in the former category. Due to the pain and suffering that these weapons can inflict, they are globally perceived as being morally abhorrent and have been banned under the 1925 Geneva Protocol.[4]

Nuclear weapons are treated differently. Even though the Nuclear Non-Proliferation Treaty (“NPT”) has been signed by most countries, it would be a stretch to call the NPT a success.[5] There are two reasons for this. First, superpowers such as the US, the UK, France, Russia and China remain lawfully in possession of nuclear weapons despite being parties to the NPT. Second, and this is largely due to the first reason, nuclear-positive countries such as India and Pakistan have refused to sign the NPT.

The NPT restricts “nuclear-weapon States” from transferring nuclear weapons to non-nuclear-weapons States and also prevents non-nuclear-weapons States from diverting nuclear energy from peaceful uses to nuclear weapons. However, the problem is that it does not place any restriction on possession of nuclear weapons by “nuclear-weapon States”, which are defined under Article IX as States that manufactured and exploded a nuclear weapon before 1 January 1967. There are five countries that meet this highly selective criteria – the US, the UK, France, Russia and China.

In effect, the NPT prevents all countries other than these five from possessing nuclear weapons thus creating a form of minority rule, as was noted by a South African delegate in the 2015 NPT Review Conference.[6] It is due to the discriminatory nature of the treaty that India and Pakistan have refused to sign it.

As the NPT shows, the powers of the world do not want to give up nuclear weapons. This is made even more evident by the fact that no nuclear-weapon State has expressed support for the recently introduced Treaty on Prohibition of Nuclear Weapons.[7] However, these countries’ desire to retain nuclear weapons is understandable since nuclear weapons provide them with significant military and strategic advantages. The fear of mutually assured destruction deters nuclear warfare, and given that countries such as North Korea might be developing nuclear warheads, it becomes necessary for other countries to possess nuclear weapons to prevent attacks.

A treaty banning LAWS seems doomed to take the NPT route in the sense that it is unlikely to be accepted by the powers that be. As of 16 November 2017, only twenty-two countries had expressed support for banning LAWS,[8] and the list does not include major stakeholders such as the US, the UK, and China.

The reason for such reluctance is clear. Like nuclear weapons, LAWS will give States a distinct military advantage – greater efficiency, cost-effectiveness, convenience, and fewer human failures. Studies indicate that LAWS are increasingly being able to perform functions that were previously attributable solely to humans, including detecting possession of weapons[9] and minimizing collateral damage.[10] If trained and used legitimately, LAWS will reduce military casualties and injuries along with saving soldiers from mental trauma resulting from armed conflicts. It would make little sense to send soldiers to risk their lives in wars when LAWS can take their place and do the job as well, if not better.

Further, unlike biological and chemical weapons, LAWS can be legitimately used in several cases, including serving as a deterrence. Critics have argued that it would not be long before these weapons become available in the black market and are obtained by rogue groups because they are relatively inexpensive and easy-to-produce.[11] If that indeed is the case, then it would become essential for countries to have their own armoury of autonomous weapons to deter attacks. Imposing a ban would only create a power imbalance between nations that abide by such a ban versus those that refuse to and militant groups.

Instead of a ban, the world would be better served by a treaty that lays down minimum standards for training, developing, testing, and operating LAWS. Such an approach has already been adopted in the US through a Department of Defense Directive which, inter alia, establishes conditions for operational testing, exercise of human judgement, minimisation of failures and prevention against tampering.[12] A treaty of this nature would ensure that LAWS are developed and used in compliance with international law with a view to protecting human rights. Such a treaty would also garner more support than a treaty that bans LAWS since States would be reluctant to accept an outright ban given the advantages LAWS would provide them with.

[1] The author is a technology lawyer working with a top-tier law firm in Bengaluru, India. The author graduated from National Law University, Jodhpur, with degrees in science and the law. He can be reached at saahildama@gmail.com.